Is health-care reform constitutional? 
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    Correction to This Article
-- A March 21 Outlook article about potential constitutional challenges to the 
health-care overhaul, in discussing the possibility that the states could 
require Congress to call a convention to propose an amendment to the 
Constitution, and the similar process used when the Prohibition-ending 21st 
Amendment was eventually ratified by state conventions in 1933, misstated the 
number of states that were required for ratification. As is still the case, it 
is three-fourths of the states, not two-thirds. 
Is health-care reform constitutional?

By Randy E. Barnett
Sunday, March 21, 2010; B02 

With the House set to vote on health-care legislation, the congressional debate 
on the issue seems to be nearing its conclusion. But if the bill does become 
law, the battle over federal control of health care will inevitably shift to the 
courts. Virginia's attorney general, Ken Cuccinelli II, has said he will file a 
legal challenge to the bill, arguing in a column this month that reform 
legislation "violate[s] the plain text of both the Ninth and Tenth Amendments." 
On Friday, South Carolina Attorney General Henry McMaster and Florida Attorney 
General Bill McCollum announced that they will file a federal lawsuit if 
health-care reform legislation passes. 
Will these cases get anywhere? Here is a guide to the possible legal challenges 
to a comprehensive health-care bill. 
The individual mandate.

Can Congress really require that every person purchase health insurance from a 
private company or face a penalty? The answer lies in the commerce clause of the 
Constitution, which grants Congress the power "to regulate commerce . . . among 
the several states." Historically, insurance contracts were not considered 
commerce, which referred to trade and carriage of merchandise. That's why 
insurance has traditionally been regulated by states. But the Supreme Court has 
long allowed Congress to regulate and prohibit all sorts of "economic" 
activities that are not, strictly speaking, commerce. The key is that those 
activities substantially affect interstate commerce, and that's how the court 
would probably view the regulation of health insurance. 
But the individual mandate extends the commerce clause's power beyond economic 
activity, to economic inactivity. That is unprecedented. While Congress has used 
its taxing power to fund Social Security and Medicare, never before has it used 
its commerce power to mandate that an individual person engage in an economic 
transaction with a private company. Regulating the auto industry or paying "cash 
for clunkers" is one thing; making everyone buy a Chevy is quite another. Even 
during World War II, the federal government did not mandate that individual 
citizens purchase war bonds. 
If you choose to drive a car, then maybe you can be made to buy insurance 
against the possibility of inflicting harm on others. But making you buy 
insurance merely because you are alive is a claim of power from which many 
Americans instinctively shrink. Senate Republicans made this objection, and it 
was defeated on a party-line vote, but it will return. 
The Cornhusker Kickback, the Louisiana Purchase, Gator Aid and other deals.

Some states are threatening lawsuits to block the special deals brokered by 
individual senators in exchange for their votes. Unless the reconciliation bill 
passes the Senate, such deals could remain in place. Article I of the 
Constitution allows Congress to tax and spend to "provide for the common defense 
and general welfare of the United States." Normally, this is no barrier to 
legislation benefiting a particular state or city. Congress can always argue 
that, say, an Air Force base in Nebraska benefits the United States as a whole. 
But the deals in the Senate bill are different. It is really hard to identify a 
benefit to all the states from exempting one state from an increase in Medicare 
costs or allowing only the citizens of Florida to get Medicare Advantage. 
The Slaughter House rule.

A far graver threat to the bill would have been to declare it unconstitutional 
because it was never formally voted on by the House and therefore never became 
law. Article I requires that every bill "shall have passed the House of 
Representatives and the Senate" to become law, and that "the votes of both 
houses shall be determined by yeas and nays, and the names of the persons voting 
for and against the bill shall be entered in the journal of each House 
respectively." 
The whole purpose of the "deem and pass" procedure -- which was advocated by 
Rules Committee Chairman Louise Slaughter -- was to avoid a separate vote on the 
Senate bill, which many House members find objectionable, and instead vote on 
the reconciliation bill and simultaneously "deem" the Senate measure passed. 
Although Democrats cited prior examples of deem and pass, "the Republicans did 
it" is not a recognized constitutional argument -- especially if the public and 
the justices have never heard of such a thing. This constitutional objection 
seems to have succeeded, as House leaders decided on Saturday to take a separate 
vote on the Senate version, rather than "deeming" it passed. 
State sovereignty provisions.

Several states are considering measures attempting to exempt their residents 
from an individual health insurance mandate. While such provisions may have a 
political impact, none is likely to have any effect on the legislation's 
constitutionality. Under the 10th Amendment, if Congress enacts a law pursuant 
to one of the "powers . . . delegated to the United States by the Constitution," 
then that law is supreme, and nothing a state can do changes this. Any state 
power to "nullify" unconstitutional federal laws has long been rejected. 
Constitutional amendments.

Of course, there is one additional way for states to win a fight about the 
constitutionality of health-care legislation: Make it unconstitutional. Article 
V of the Constitution gives state legislatures the power to require Congress to 
convene a convention to propose an amendment to the Constitution. If two-thirds 
of state legislatures demand an amendment barring the federal regulation of 
health insurance or an individual mandate, Congress would be constitutionally 
bound to hold a convention. Something like this happened in 1933 when Congress 
proposed and three-quarters of the states ratified the 21st Amendment, removing 
from the Constitution the federal power to prohibit the manufacture, sale and 
transportation of alcohol. But the very threat of an amendment convention would 
probably induce Congress to repeal the bill. 
Ultimately, there are three ways to think about whether a law is constitutional: 
Does it conflict with what the Constitution says? Does it conflict with what the 
Supreme Court has said? Will five justices accept a particular argument? 
Although the first three of the potential constitutional challenges to 
health-care reform have a sound basis in the text of the Constitution, and no 
Supreme Court precedents clearly bar their success, the smart money says there 
won't be five votes to thwart the popular will to enact comprehensive health 
insurance reform. 
But what if five justices think the legislation was carried bleeding across the 
finish line on a party-line vote over widespread bipartisan opposition? What if 
control of one or both houses of Congress flips parties while lawsuits are 
pending? Then there might just be five votes against regulating inactivity by 
compelling citizens to enter into a contract with a private company. This 
legislation won't go into effect tomorrow. In the interim, it is far more 
vulnerable than if some citizens had already started to rely upon its benefits. 
If this sounds far-fetched, consider another recent case in which the smart 
money doubted there were five votes to intervene in a politicized controversy 
involving technical procedures. A case in which five justices may have perceived 
that long-established rules were being gamed for purely partisan advantage. 
You might have heard of it: Bush v. Gore. 
Randy E. Barnett teaches constitutional law at Georgetown University. He is the 
author of "Restoring the Lost Constitution: The Presumption of Liberty." He will 
be online to chat with readers at 11 a.m. on Monday, March 22. Submit your 
questions and comments before or during the discussion. 
View all comments that have been posted about this article.
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